Walmart case goes to LUBA

March 7, 2012

On Feb. 29, the nonprofit organization Hood River Citizens for a Local Economy, through its attorney Kenneth Helm, filed a petition of appeal to the Oregon Land Use Board of Appeals specific to a recent proposed expansion of the Hood River Walmart facility.

According to Becky Brun, who is coordinating the appeal, HRCLE is "attempting to ensure that Walmart and the City of Hood River are acting lawfully" with regards to the requested 30,000-square-foot expansion aimed at adding a full-service grocery store to the site. The appeal goes against the governing body on the decision, not Walmart.

The Hood River City Council, overturning a previous Hood River City Planning Commission ruling to deny the expansion, approved the Walmart expansion Dec. 27 based on a differing interpretation of planning commission findings and applicable laws.

In its appeal, HRCLE presented 30 pages of legal argument to the LUBA board and cited case law which contradicts and refutes the ruling arrived at by City Council.

In essence, HRCLE's appeal is a listing of alleged legal "errors" made by the City Council in arriving at its decision to allow the expansion.

LUBA, who will review the legal steps and/or missteps of the council against applicable Oregon laws, consists of three board members who are appointed by the governor. They are attorneys who are experts in land-use planning law.

In filing the LUBA appeal HRCLE cites three areas where it alleges the council either misinterpreted the existing laws and requirements, or failed to interpret existing laws and the presented evidence correctly.

The only evidence that LUBA will now consider is that already in the public record of decision, and the arguments and case law supporting that evidence as presented in the appeal. No new public testimony will be taken.

HRCLE's petition alleges the city council erred in three areas - presented in summary form as follows:

The current city council misconstrued applicable laws and failed to adopt findings supported by substantial evidence when it interpreted that the original 1991 planning commission "approved" a 30,000-square-foot expansion.

Among many pages of argument, HRCLE contends that approval was given expressly and exclusively for the existing 72,000-square-foot store by the original planning commission.

It also contends that the current city council should not have used Walmart's choice to build oversized infrastructure as a fact from which to infer an intended "approval" of a larger build-out by the original planning commissioners.

The City's ruling improperly allows for the creation of an entirely new and therefore illegal nonconforming use property with the addition of 30,000 square feet, since there is no basis to expand the existing nonconforming use.

To expand on an existing nonconforming use property, the owner must show permits were obtained and significant actions were under way at the time the land use laws changed resulting in the nonconforming use.

HRCLE attests that Walmart did not pursue permits or actions necessary to proceed with expansion under nonconforming use laws.

Specifically, Walmart never applied for building permits or made physical changes to its land in an effort to pursue the 30,000-square-foot expansion either before or after zone changes precluded such expansion in 1997.

HRCLE also contends that if any rights had been possible to pursue, they expired within two years of the 1997 zone change, according to many cited similar cases.

The City erred as a matter of law and made a decision not supported by evidence when it found that Walmart had "vested" property rights to expand under the "Holmes" case (which is the only alternative when a property is already classified as a nonconforming use).

HRCLE contends that: numerous "Holmes" case requirements were not legally met and the precedent should not have been used to support the project approval; Walmart also failed to provide mandated evidence to fulfill the necessary "expenditure ratio" test and the City failed to request adequate evidence in order to meet that legal standard.

LUBA generally will issue its ruling within 77 days after the original City Council decision.

The final opinion and order will address the issues presented in the HRCLE's appeal, setting forth the reasons for LUBA's ruling.

Any party can then appeal LUBA's decision to the Oregon Court of Appeals. Petitioners have 21 days after the date LUBA mails its final opinion and order to request an appeal.